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Another Bite at the Apple

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On July 8, 2022, The N.C. State Bar adopted new regulations, pursuant to amended N.C. Gen. Stat. §§ 84-28 and 84-32.1.  These regulations, which have yet to be certified by the N.C. Supreme Court as of today, create a new appeal process of sorts.  An attorney who receives proposed public discipline from the Grievance Committee may now request a review of that decision by a panel of five Grievance Committee members.  These five members would not have heard Bar Counsel’s presentation or the grievance committee’s deliberations on the matter previously.

Many of my clients believe the cards are stacked against them in the grievance process, or that the State Bar counsel is bound and determined to find some violation, even if it has nothing to do with the original grievance.  Bar Counsel has quite a bit of discretion and power relative to grievance matters, including what issues are reviewed and what information is presented to the grievance committee.  The primary complaints I hear from my clients are the lack of transparency in the process, the one-sided nature of the proceedings, the inability to participate meaningfully in the grievance process, and the lack of opportunity to be heard.  To put this into perspective, I will review, very generally, the grievance process of the State Bar.

The grievance process generally begins when a complaint is filed with the State Bar. If the alleged conduct, when presumed to be true, would constitute a violation of the Rules of Professional Conduct, the attorney receives written notice of the complaint, along with a summary of the pertinent allegations and the potential rules implicated in a document called the Substance of Grievance.  The attorney then has 15 days (unless an extension is granted) to respond to the allegations in writing.  The written response is the attorney’s only bite at the apple– the only opportunity to present their side of the story.  Once Bar Counsel receives the response, then the investigation can continue.  Bar investigators may request documentation from third parties, interview potential witnesses, or ask the Respondent Attorney to provide additional written responses, etc.  Once the investigation is complete, Bar Counsel creates a Report of Counsel, which includes findings and recommendations to the Grievance Committee, and then presents the Report orally to the Grievance Committee in closed proceedings.  The Respondent Attorney does not receive a copy of the Report, does not know exactly what materials have been provided to the Grievance Committee and is not permitted to be present for or participate in the proceedings.  There is no opportunity to argue the matter, impeach witnesses, or present additional contrary evidence. The process has been compared to a grand jury.

Under this new regulation, when an attorney receives proposed public discipline by the Grievance Committee, the attorney has the opportunity to request review by a panel of five grievance committee members.  Here are some key aspects of the Review Panel proceedings and my observations:

  • The panel is not made up of any Grievance Committee member who has heard the matter before.
  • Bar Counsel provides to the Review Panel, and Respondent Attorney, a copy of everything that the Grievance Committee reviewed, except for the Report of Counsel and any other attorney-client privileged information. Only the Panel is permitted to see the Report of Counsel and privileged information.
  • If after reviewing the record, Respondent Attorney learns that Bar Counsel did not provide all information to the Grievance Committee that was previously submitted to the State Bar, the Respondent Attorney can request that such information be presented to the Review Panel.
  • In the review proceedings, the Respondent Attorney has an opportunity to speak directly to the Panel, either with or without counsel present, giving the Respondent Attorney an opportunity to be heard.
  • The proceedings are confidential.
  • In my experience, the Panel members are very engaged in this process, knowledgeable about the facts, and ask many questions.  These are individuals charged with conducting an independent review, and based upon my observations, they take this responsibility very seriously.
  • Prior to the Review Panel hearing, the Respondent Attorney has the opportunity to provide additional materials, not previously before the Grievance Committee, though no live testimony is permitted at the hearing.  The State Bar also has this same ability to put new information into the record before the Panel.
  • Each side gets 30 minutes to present argument, including any questions the panel may ask during the argument.  The proceedings are similar to appellate arguments in that way.

Things to keep in mind:

  • As of today, the temporary review panel procedures must still be certified by the N.C. Supreme Court, but the State Bar is currently operating under these temporary rules. (27 NCAC 01B .0113(m))
  • In January 2023, the State Bar issued a memorandum which more fully explains its procedures.
  • The memorandum, among other things, permits Bar Counsel to have private discussions with the Panel following the Review Panel hearing at the request of the Panel members.
  • The Respondent Attorney does not see all the materials that the Review Panel receives from the State Bar.  Importantly, Bar Counsel’s Report of Counsel and investigator’s notes and recommendations are not shared with Respondent or Respondent’s counsel.
  • The Review Panel can only make a recommendation to the Grievance Committee.  If the Review Panel determines that the Grievance Committee should have done something differently, the Panel makes a recommendation and remands the matter back to the same Grievance Committee Panel that originally heard the Grievance.  It is then up to the Grievance Committee to issue a disciplinary decision in the matter.
  • There is no requirement that the Grievance Committee follow the Review Panel’s recommendation.
  • The Review Panel is only available if the Grievance Committee issues an order of public discipline.  This requirement seems to suggest that the Grievance Committee’s referral to the Disciplinary Hearing Commission would not trigger the availability of the Review Panel.

While the Review Panel process likely will alleviate many concerns that lawyers have about the process, there are some details about the process that still need to be fleshed out. For many of my clients, the addition of this review procedure is certainly a step in the right direction.  Nonetheless, the State Bar’s ability to present its recommendations and impressions to the Panel (without sharing such information with Respondent Attorney) and the ability for Bar Counsel to have private meetings with the Panel upon request seem to undercut the Review Panel’s ability to provide truly independent or impartial review.  It is unclear whether these concerns in fact impact the Panel’s impartiality, but it could create an appearance problem.  Perhaps we will learn more as more Review Panel hearings are held and we can see how these processes unfold.

ABOUT Deanna S. Brocker Deanna represents attorneys before the State Bar on grievance and disciplinary matters and also counsels attorneys and law firms on various ethics matters. She previously served as Assistant Ethics Counsel to the NC State Bar for over 10 years. To read Deanna's full bio, click here